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Old 03.09.2020, 17:19
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Should Dependent Spouse request for independent B?

Hi All,

I am requesting your advice on our current Situation.
Since last 4 yrs we stay in CH : 2 yrs L + 2 yrs B Permit
Non-EU - with My B permit and spouse/kids as dependent.

Now since this year my wife is on job on dependent B permit.

Should my wife request her company to file an independent B on her Behalf. From what we hear the company would be open to do it.

Our Questions are:
1. Is this business as usual - happens all the time or something very specific and takes loads of documentation / process?

2. Will her getting a B permit (from another Kanton) be an issue in our stay in current kanton ? because of kids school, my job etc we dont want to move) or would this disrupt the C-Permit/Passport length stays?

3. If I loose my B permit - would I still be eligible to stay on dependent on spouse's B permit and continue same or any other job?

4. Is there any other factor to consider +/- ?

Request you opinion on above - or if someone has encountered it himself/herself.

Many Thanks,
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  #2  
Old 03.09.2020, 17:41
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Re: Should Dependent Spouse request for independent B?

No, because then her company would have to prove they can't find a Swiss/EU national to do the job.

https://www.sem.admin.ch/sem/en/home...zulassung.html
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Old 04.09.2020, 09:34
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Re: Should Dependent Spouse request for independent B?

This is something I have wondered also. I came here in 2014 as a post doc from Canada, so I was on a formation avec activité permit B. My wife joined me in 2015 as a PhD student, got her own formation avec activité permit B. After 3+ years as a postdoc I went to help build a startup company (exactly in my field/training) but instead of giving me my own permit they decided to give me a familial regroupement avec activité. The company is now incorporated with 10 employees and steady funding and I am trying to get my C permit (I've been here 6 years, and as a Canadian I should be able to get it after 5 years if I was working outside the university for 2 years, which I have been). However, I'm worried that because I am on a family regroupement with my wife who is still in formation it will mess it up. The last 2 years I have tried to apply for my own permit but they keep just rubber stamping and sending me a family regroupement.
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Old 04.09.2020, 10:24
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Re: Should Dependent Spouse request for independent B?

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This is something I have wondered also. I came here in 2014 as a post doc from Canada, so I was on a formation avec activité permit B. My wife joined me in 2015 as a PhD student, got her own formation avec activité permit B. After 3+ years as a postdoc I went to help build a startup company (exactly in my field/training) but instead of giving me my own permit they decided to give me a familial regroupement avec activité. The company is now incorporated with 10 employees and steady funding and I am trying to get my C permit (I've been here 6 years, and as a Canadian I should be able to get it after 5 years if I was working outside the university for 2 years, which I have been). However, I'm worried that because I am on a family regroupement with my wife who is still in formation it will mess it up. The last 2 years I have tried to apply for my own permit but they keep just rubber stamping and sending me a family regroupement.
The two year rule post studies to retroactively count study years for C does not necessarily need to be working, it just has to be a “durable” status (quoting the legal text in French, of which family regroupement is one).

The condition sine qua non for the rule to be applied is to have graduated from a Swiss university. Per SEM guidelines “graduated from a Swiss university” means obtaining a Swiss higher education diploma (Bachelor, Master, PhD). Coming to Switzerland only for the Master or PhD also counts as “graduating from a Swiss university” as per SEM directives.

The question in your case is whether a post doc counts as “graduating from a Swiss university”.
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Old 04.09.2020, 10:58
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Re: Should Dependent Spouse request for independent B?

Ch. 6. Art 34. 5

Temporary periods of stay, in particular for education or training (Art. 27), do not count towards the uninterrupted period of stay in the last five years in accordance with paragraphs 2 letter a and 4. Periods of stay for education or training (Art. 27) are included if the person concerned, after their completion, held a permanent residence permit for an uninterrupted period of two years.


https://www.admin.ch/opc/en/classifi...232/index.html


I guess I don't know if my family regroupement will count or not as a "permanent residence permit."

Which to me is a bit annoying, since I arrived on my own permit, not through regroupment, and am highly qualified. I don't know why they put me on the regroupment in the first place. I wasn't joining my wife in Switzerland, she was joining me here.
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Old 04.09.2020, 11:01
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Re: Should Dependent Spouse request for independent B?

If you read my post above yes family regroupement is a durable permit

Now you need to find out whether post doc counts as graduating from a Swiss university. In case it does not (SEM guidelines lead to believe this is the case) then you have to wait for 5 years on a durable permit to apply
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  #7  
Old 04.09.2020, 11:18
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Re: Should Dependent Spouse request for independent B?

Yes, I did read that, but I don't see anything about having to "graduate".

Un étranger peut être admis en vue d’une formation ou d’une formation continue aux conditions suivantes:2

a.3
la direction de l’établissement confirme qu’il peut suivre la formation ou la formation continue envisagées;
b.
il dispose d’un logement approprié;
c.
il dispose des moyens financiers nécessaires;
d.4
il a le niveau de formation et les qualifications personnelles requis pour suivre la formation ou la formation continue prévues.

and

Les séjours temporaires ne sont pas pris en compte dans le séjour ininterrompu de cinq ans prévu aux al. 2, let. a, et 4. Les séjours effectués à des fins de formation ou de formation continue (art. 27) sont pris en compte lorsque, une fois ceux-ci achevés, l’étranger a été en possession d’une autorisation de séjour durable pendant deux ans sans interruption.

Here it doesn't say you have to graduate from a swiss university, just that you have to have a durable permit 2 years after having been admitted for formation.

I find it strange that postdocs are formation visas anyways, but that's a different matter.

But my main question is: Is my family regroupment permit "durable", if my wifes permit is formation?
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Old 04.09.2020, 11:29
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Re: Should Dependent Spouse request for independent B?

Have highlighted for you below.

I encourage you to read the SEM guidelines which provide more detail on what is considered as a graduate of a Swiss university

And for the third time yes a family regroupement permit is durable

It could be you were never really admitted to the Swiss labor market and are just a dependent of your wife (who is a student), which would allow work on a non-quota permit but whose stay is dependent on her PhD salary. This could cause problems the moment your wife graduates

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Yes, I did read that, but I don't see anything about having to "graduate".

Un étranger peut être admis en vue d’une formation ou d’une formation continue aux conditions suivantes:2

a.3
la direction de l’établissement confirme qu’il peut suivre la formation ou la formation continue envisagées;
b.
il dispose d’un logement approprié;
c.
il dispose des moyens financiers nécessaires;
d.4
il a le niveau de formation et les qualifications personnelles requis pour suivre la formation ou la formation continue prévues.

and

Les séjours temporaires ne sont pas pris en compte dans le séjour ininterrompu de cinq ans prévu aux al. 2, let. a, et 4. Les séjours effectués à des fins de formation ou de formation continue (art. 27) sont pris en compte lorsque, une fois ceux-ci achevés, l’étranger a été en possession d’une autorisation de séjour durable pendant deux ans sans interruption.

Here it doesn't say you have to graduate from a swiss university, just that you have to have a durable permit 2 years after having been admitted for formation.

I find it strange that postdocs are formation visas anyways, but that's a different matter.

But my main question is: Is my family regroupment permit "durable", if my wifes permit is formation?
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Old 04.09.2020, 11:39
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Re: Should Dependent Spouse request for independent B?

Ok, so the subtlety is the word "achevés", it can translate to just completed, finished, etc, but you're saying it may imply "graduated" or something similar.

"It could be you were never really admitted to the Swiss labor market and are just a dependent of your wife"

This is exactly what I am worried about from a legal point of view, and why I tried to get my own work permit the last couple years (also why it's related to this thread.)

It's not a huge issue since she also has a permanent contract coming out of her (PhD, now post doc). We put in for the C a month ago with all the other paperwork, I guess I just don't know if it will be accepted or not.
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Old 04.09.2020, 11:47
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Re: Should Dependent Spouse request for independent B?

No it is not a subtility, it is a sine qua non condition to obtain a diploma following studies from a Swiss higher education institution for art 34 al 5 to be applied. Further you cannot simply “translate” legal text into a non-national language and interpret it that way.

Her stay as as a post doc student is considered temporary (and so is yours as a dependent) in the eyes of the law.

In order to get a regular permit as a non-EU, an employer must submit the request (hence why your start up was unable to do so at the time), satisfy Swiss labor market regulations, obtain a quota from the Federal Council and prove autochthonous priority was taken into account for a permit to be granted

I’m afraid there are no legal grounds to grant a C in your case
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Old 04.09.2020, 12:09
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Re: Should Dependent Spouse request for independent B?

Interesting, thank you for your reply. We'll see if we are granted one or not.

By subtlety I simply meant I did not know that word meant to have graduated.
It is strange to admit someone on a formation permit that fundamentally and intrinsically has no ability to fulfill the graduation requirement.

"L’autorisation d’établissement peut être octroyée au terme d’un séjour plus court si des raisons majeures le justifient."

Maybe, we have been able to justify well enough our reasons for granting early.

I definitely know people in situations where the had no legal right to a C permit but were granted them anyways, so fingers crossed.
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Old 04.09.2020, 12:12
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Re: Should Dependent Spouse request for independent B?

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It is strange to admit someone on a formation permit that fundamentally and intrinsically has no ability to fulfill the graduation requirement.
No it is not strange as people on student / training permits are considered to be on a temporary stay for the purpose of studies and are expected to leave at the end of the training period.

It is only after a relatively recent revision of the law (following the Neyrinck parlamentary initiative in case curious) that access to non-EU graduates of Swiss universities was eased, of which the second sentence of art 34 al 5 stems from.

I let you read the SEM guidelines and ordinance for the admision, stay and lucrative activity for foreigners (OASA in French) to understand what counts as a raison majeure (I can save you time and tell you being a postdoc is not one of them) but best of luck to you.

Last edited by qwertz; 04.09.2020 at 13:23.
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Old 04.09.2020, 13:12
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Re: Should Dependent Spouse request for independent B?

Sorry, back to original questions.


Our Questions are:
1. Is this business as usual - happens all the time or something very specific and takes loads of documentation / process?

In my experience it is very difficult for them to take you off a family regroupement permit. I tried unsuccessfully a couple years, from my understanding you have to give up your family regroupement permit, leave the country, then apply the normal way for a job and meet the hiring requirements, then move back to the country.

2. Will her getting a B permit (from another Kanton) be an issue in our stay in current kanton ? because of kids school, my job etc we dont want to move) or would this disrupt the C-Permit/Passport length stays?

Your permit is from the canton you live in, not the canton you work in.

3. If I loose my B permit - would I still be eligible to stay on dependent on spouse's B permit and continue same or any other job?

Why would you lose your B permit and continue the same job? Once you have a B permit you keep it. But no, from my understanding the primary permit holder needs to get the permit.

4. Is there any other factor to consider +/- ?

I simply think you can't do it without leaving the country and deregistering.
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Old 04.09.2020, 13:20
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Re: Should Dependent Spouse request for independent B?

"The possibility of gainful employment for family members is related, according to art. OASA 26 and 27, to the duration of the authorization of the person granted family reunification. If the residence permit of the spouse is not renewed, the members of his family cannot claim a right to pursue their gainful employment (art.6, para. 2, OASA)."

https://www.sem.admin.ch/content/dam...ngen-aug-f.pdf (Section 4.4.1)
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Old 15.09.2020, 10:10
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Re: Should Dependent Spouse request for independent B?

Thanks a lot for the replies and most were correct. Took some time till i reached the conclusion - I also had a talk with a professional on this topic, and here is the outcome for this topic should someone like me go searching for this question again

1. There are limited B permits. Since the dependent B allows you to work, the authorities believe this is not impairing you to work in any way, and would not simply gift away another just for our whims.

2. In case the Main B holder looses B permit, then the dependent can still request the authorities for an independent one. A fresh round of permit renewal can happen in such cases.

3. It doesn't matter if the permit is being sought in another canton and not directly eating away from the pool of permits in where the first/main B permit is issued.

Of course, what authorities would decide varies on merits of each case but this is the thumb rule.

Thanks again everyone for their detailed replies. It helped us a lot.
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Old 20.09.2020, 21:24
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Re: Should Dependent Spouse request for independent B?

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This is something I have wondered also. I came here in 2014 as a post doc from Canada, so I was on a formation avec activité permit B. My wife joined me in 2015 as a PhD student, got her own formation avec activité permit B. After 3+ years as a postdoc I went to help build a startup company (exactly in my field/training) but instead of giving me my own permit they decided to give me a familial regroupement avec activité. The company is now incorporated with 10 employees and steady funding and I am trying to get my C permit (I've been here 6 years, and as a Canadian I should be able to get it after 5 years if I was working outside the university for 2 years, which I have been). However, I'm worried that because I am on a family regroupement with my wife who is still in formation it will mess it up. The last 2 years I have tried to apply for my own permit but they keep just rubber stamping and sending me a family regroupement.
Hi,

My husband and I have very similar situation about application for C permit. He is here already 10 years, has a German certificate and other required documents, working last 2 years on my B permit, so family reunification (I am PhD and EU citizen, he is non-EU citizen). We will try as well for him that he gets C permit. Please, if you already tried it, let us know how all passed. I keep the fingers crossed.
All the best!
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Old 21.09.2020, 21:33
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Re: Should Dependent Spouse request for independent B?

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Hi,

My husband and I have very similar situation about application for C permit. He is here already 10 years, has a German certificate and other required documents, working last 2 years on my B permit, so family reunification (I am PhD and EU citizen, he is non-EU citizen). We will try as well for him that he gets C permit. Please, if you already tried it, let us know how all passed. I keep the fingers crossed.
All the best!
What were the previous permits / status during the past 10 years of your husband?

Given that your stay as a PhD is temporary, so is his (as your dependent).

As an EU PhD, assuming you work more than 15 hours per week, the moment you obtain a work contract (of more than 12 months) outside of university your PhD years will retroactively count towards C.

For your husband it will depend what his previous stays were but in any case art 34 al 5 cannot be applied so long as you are still on a PhD / student permit
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Old 22.09.2020, 10:45
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Re: Should Dependent Spouse request for independent B?

I have heard this is the case, but I know plenty of PhD students from EU countries who got C permits while doing their PhD studies. They never had jobs after, one got his C so he could just go travel the world for a couple years and be able to come back (put C on hold). I think EU PhD students have no problems getting a C.
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Old 22.09.2020, 11:00
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Re: Should Dependent Spouse request for independent B?

Getting a C permit has nothing to do with being EU.

The special exception for EU PhD students and post-docs to have their study years counted retroactively is because under the FMOP agreement, they would usually obtain a durable 5 year working B permit with a work contract greater than 12 months.

However under Swiss law study years are considered temporary, so this provision was made to not penalize EU PhDs and post-docs when applying for C (after 5 or 10 years, depending on the EU person’s nationality)
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Old 22.09.2020, 13:09
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Re: Should Dependent Spouse request for independent B?

This may be the law, but in practice many PhD students get C permits while still being PhD students, never having worked in Switzerland other than as a PhD student. I have seen this happen for French, German, and Italian nationals in Vaud getting a C permit before graduating from EPFL, with no job contract afterwards, eg. leaving Switzerland to travel for a year.
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